1. Request presented by EDA

1.1. On 07.12.2010, ICP-ANACOM received a request for resolution of a cross-border dispute brought by European Directory Assistance, S. A. (EDA) against Ar Telecom - Acessos e Redes de Telecomunicações, S. A. (Ar Telecom) ¹, under article 12 of Law No 5/2004, of 10 February (Electronic Communications Law - ECL).

1.2. This request was written in English, having ICP-ANACOM thus asked EDA to submit it in Portuguese, as applications by interested parties must be drawn up in this language, in the light of principles governing the administrative procedure.

1.3. The request for dispute resolution written in Portuguese was submitted on 04.02.2011 ², date on which it is considered that the request was duly presented and that ICP-ANACOM's intervention was sought for the purposes of article 12 of ECL.

1.4. EDA first provides an overview of the economic activities it pursues, its field of activity concerning the provision of directory enquiry services and directories in the territory of the Kingdom of Belgium.

1.5. As far as this dispute is concerned, EDA provides international directory enquiry services by means of which Belgium residents can access information on telephone numbers of subscribers living in other countries.

1.6. For this purpose, the claimant set up its own integrated database, having concluded agreements with telecommunications operators of several countries which assign national numbers to their subscribers.

1.7. In the case of Portugal, EDA refers that, notwithstanding several requests sent to all telecommunications operators for provision of the respective database so that a telephone directory could be set up, no response was received. It was thus impossible to create a Portuguese integrated database and to provide Belgian users with enquiry services on Portuguese subscribers.

1.8. EDA declares that, in order to pursue its activities, it is registered with the Belgian telecommunications regulator (Belgian Institute for Postal services and Telecommunications - BIPT) as provider of directory enquiry services and directory editor, as well as with the Commission for the Protection of Privacy (CPVP) as especial personal data administrator.

1.9. EDA sets out the regulatory framework which applies, in its opinion, to the provision of directory enquiry services and to the publication of directories, stressing the following provisions:

• Article 25, paragraph 1, of Directive 2002/22/EC ³ and article 50 of ECL that lay down the right of subscribers of publicly available telephone services to be included in a comprehensive directory available to the public, provided for respectively in paragraph 1 a) of article 5 of the Directive and in paragraph 1 a) of article 89 of ECL. EDA highlights that this right refers not only to the inclusion of data in a universal telephone directory, but to the inclusion in any list, whether Portuguese or of any other Member State;
   
• Article 5 of Directive 2002/77/EC, imposing on Member States the obligation to ensure that all special and/or exclusive rights with regard to the establishment and provision of directory services on their territory are abolished;
   
• Article 12 of Directive 2002/58/EC and paragraph 1 i) of article 48 and paragraph 1 of article 50, both of ECL, which require undertakings that assign telephone numbers to obtain the prior explicit consent of subscribers as regards the inclusion of their data on directories and/or directory enquiry services;
   
• Article 25, paragraph 2, of Directive 2002/22/EC and paragraph 4 of article 50 of ECL that require undertakings which assign telephone numbers to subscribers to provide data on subscribers who have given their consent as regards the inclusion of their data on directories and/or directory enquiry services to providers of such services that have submitted duly substantiated requests. In this connection, EDA explains the various European models for the transmission of subscriber databases for publication of directories.

1.10. EDA also describes the procedure for setting up an integrated database, stressing that  it cannot be carried out without the provision by operators of all databases of  subscribers who have provided their explicit consent for the publication of their data  in directories or directory enquiry services.

1.11. Turning to the facts giving rise to the dispute, EDA informs that, in order to meet  the increasing number of enquiries on telephone numbers of Portuguese companies  and individuals, made through its international directory enquiry service, it contacted all providers of publicly available telephone services in Portugal that assign telephone numbers to their subscribers, including Ar Telecom.

1.12. This contact was established by letter sent on 29 January 2010 and by email, by means of which the claimant, invoking paragraph 2 of article 25 of Directive 2002/22/EC, requested the provision of the database so that the operator's directory was set up and included in EDA's Portuguese integrated database.

1.13. According to the claimant, until 30 November 2010 no response was received, which is deemed to be contrary to the applicable Community and Portuguese law.

1.14. Therefore, on the basis of article 21 of Directive 2002/21/EC ⁴ and article 12 of ECL, as well as of paragraph 2 of article 25 of Directive 2002/22/EC and paragraph 4 of article 50 of ECL, EDA requests ICP-ANACOM to:

• Accept its request as a valid call for for settlement of a cross-border dispute and to indicate the extent of its competence in respect of this dispute;
   
• Coordinate its opinion with the Belgian Regulatory Authority (BITP) so that a decision is taken in compliance with article 8 of Directive 2002/21/EC and paragraph 2 of article 12 of ECL;
   
• Ask the European Regulators Group for Electronic Communications networks and services (BEREC), if possible, to provide its opinion on this request;
   
• Require Ar Telecom to immediately conclude with EDA a contract for transmission of its database for directory set up;
  • Decide  clearly the contents and number of attributes which must be supplied to EDA, contained in the databases for directory set up;
   
• Require Ar Telecom to provide access to the referred database in conformity with Case C-109/03 of the Court of Justice of the European Union, that is, EDA would only pay actual costs resulting from the provision of information required to set up directories, and to explicitly indicate the respective amount in case it decides that it is entitled to a payment;
   
• Take into account the spirit of Community law in the settlement of this dispute and to set aside any national provision that may obstruct the application of directives, in addition to the request in the preceding point and bearing in mind Community case law.